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Floyd Landis vs. USADA verdict is in

By Kenneth Barbalace
[Thursday, September 20, 2007]

"Whoever is dishonest with very little will also be dishonest with much. . . So if you have not been trustworthy in handling worldly wealth, who will trust you with true riches . ." Luke 16:10.

1. From the beginning, the Laboratoire National de D├ępistage et du Dopage ("LNDD") has not been trustworthy. In this case, at every stage of testing it failed to comply with the procedures and methods for testing required by the International Standards for Laboratories, Version 4.0, August 2004 ("ISL") under the World Anti-Doping Code, 2003 ("WADA Code"). It also failed to abide by its legal and ethical obligations under the WADA Code. On the facts of this case, the LNDD should not be entrusted with Mr. Landis' career.

2. Mr. Landis is only required to prove the facts he alleges in this case by a mere balance of the probabilities.1 In many instances, Mr. Landis sustained his burden of proof beyond a reasonable doubt. The documents supplied by LNDD are so filled with errors that they do not support an Adverse Analytical Finding. Mr. Landis should be found innocent.

Opening statements of arbiter Christopher L. Campbell in his dissent of the majority findings.

Today appears to be a very, very dark day for science, fairness and due process. In what Eddie Pells of the Associated Press called "the closest thing to a fair trial any accused athlete will get", in a 2-1 decision, Floyd Landis was found guilty of the doping allegations leveled against him after the 2006 Tour de France.

While I have not had time to read all 84 pages of the Final Award findings, one section does jump out at me as being extremely troubling. Under part 2 section (vi) the findings state:

(vi) LNDD's Laboratory Errors – Cumulative Effect?

306. In addition to the ISL violations discussed in the Scientific portion of this award, the Respondent alleges that the number of errors committed by the LNDD technicians should give the panel no assurance in the reliability or accuracy of the test results. Specifically the Respondent points to, (1) the various errors committed by the LNDD technicians, (2) the failure of the LNDD technicians to understand the critical hardware and software and (3) other indicators that LNDD technicians lack of competence in the IRMS equipment and in its operation.

307. As acknowledged by the Respondent these alleged errors do not directly implicate a specific ISL, WADA Technical Document or ISO. However, the Respondent contends that they are nevertheless, evidence of inexperience, incompetence and lack of training.

308. It was the conclusion of Dr. Davis after observing LNDD technicians Claire Frelat and Cynthia Mongongu that neither of them understood the IsoPrime1 or IsoPrime2 instruments, nor were they understanding of the software used to accompany these instruments.

309. The Respondent also argues that the lack of a training program for the operation of the IRMS instruments, the fact that LNDD had no manual for its IsoPrime instrument, the misunderstanding regarding the instrument's indicator light, the Lab's failure to remove the lifting rings on its IsoPrime2 instrument before operation further corroborates the assertion that the Lab's results are not accurate or reliable.

310. In reference to the lack of a manual for the IsoPrime instrument, the Respondent points specifically to the Penning pressure of the instrument. The documentation states that the pressure for the molecular pump should remain below a level of 5E minus 6 millibars. During the "A" sample analysis, the Penning pressure read 5.2 X 10-6 millibars, which is slightly above the documentation's reference threshold level. Dr. Davis testified that the operation of the instrument above the threshold pressure can produce unreliable results. However, Dr. Brenna's testified that had there been a pressure problem then the Mix Cal acetate results would have indicated such a problem and they did not. Furthermore, there is the fact that on re-analysis using the IsoPrime 2 instrument the results are confirmed with on the whole higher values than with the equipment alleged to be incompetently operated.

311. In response to these assertions the Panel finds that the practises of the Lab in training its employees appears to lack the vigor the Panel would expect in the circumstances given the enormous consequences to athletes of an AAF. Furthermore, the other matters introduced in evidence and referred to in this section do give some cause for concern. Nevertheless, like other parts of the evidence in this matter there are no ISL Rule violations that might result in the Panel accepting the Respondent's allegations as affecting the AAF in this case.

In simple terms, yes there are problems at LNDD, yes the practices of the LNDD "lack the vigor the Panel would expect in the circumstances" and "other matters introduced in evidence" "do give some causes for concern," however we are going to ignore this and convict anyways. Good lord I hope these arbiters are never on the jury if I'm on trial.

How many innocent people have been convicted of crimes over the years by just such an attitude? I don't know, but in recent years there have been many cases of people on death row being proven innocent as the result of DNA testing. Granted Floyd Landis wasn't on trial for a capital crime, but the ramifications of the verdict leveled by this arbitration panel will still have life altering effects on Floyd Landis' life. Doesn't he or any athlete deserve to have the confidence in knowing that the testing procedures being carried out on their samples are of the strictest standards and are carried out by properly trained lab technicians?

In this case the majority admit that the training and procedures were not up to par, but they convicted anyways. This is a miscarriage of justice. If I were an athlete who fell under WADA and/or USADA's drug testing regime (e.g. virtually all Olympic athletes), I would be very afraid right now. Being clean may not be good enough, they also have to hope and pray that the technicians handling their samples are properly trained and don't screw up.

If you are a lab scientist with a background in the type of laboratory analysis and procedures required to carry out drug testing and would be interested in writing an Opt-Ed piece analyzing the Final Award findings and dissent for Floyd Landis vs. USADA, please contact me via our contact form. I would love to be able to publish a full scientific analysis of the findings regardless of what the findings reveal. At first glance, the findings look like a massive miscarriage of justice, but maybe that first glance is wrong. What I want to be able to publish a solid scientific analysis and see if science was well served with these findings or not.

Relevant Hearing Documents

Our previous Floyd Landis coverage

Must Read Articles, best of the best (updated 9/21/2007 @ 8:30 am (GMT -5:00))

5 comments:

NOTICE: Comments are user generated feedback and do not represent the views and/or opinions of EnvironmentalChemistry.com.

wschart said...

Ken:

I agree that admitting the LNDD errors might result in a dismissal in a later case, but not here is rather dismaying. Either the nature of their work warrants a dismissal or it doesn't. It kind of like a cop telling a bank robber "if you keep robbing banks, I'll have to arrest you, but I'll let you slide this time."

It will be interesting to see if any expert takes up the offer to evaluate the science or lack thereof if the decision, either here or at TbV.

Dr Dave said...

There are two aspects here. One is that the lab deviated from protocols in some respect. This was upheld as it only had to be shown by a balance of probabilities.

In response to that, the lab can show, to a higher standard of proof, that the results were not materially affected by the breach of protocol. This was upheld by the panel.

Arguing inexperience/lack of understanding is not a defence in this case as standard protocols are supposed to allow a trained monkey to do the job properly, and there was sufficient other evidence, confirmatory tests etc. to support the deviations from protocol as having no effect on whether a positive was returned or not.

Now, whether the test is appropriate and reliable as a definitive indicator of doping is a totally different question.

..d

Ken (EnvironmentalChemistry.com) said...

The more I read, the more disheartened I become. If I understand things correctly, and I may not, the majority did find that LNDD messed up the first tests and those tests did not show an adverse analytical finding. It was a single test result from subsequent testing that they are hanging the entire guilty verdict on.

In other words, Floyd Landis was convicted on that: A) testing should have never taken place because the "A" sample was not truly positive; and B) a test result that was not repeatable.

I would love for a scientist familiar with anti-doping tests to take me up on my offer and provide a detailed analysis of the arbitration panel's findings in laymen terms. Something really smells like rotten fish.

Anonymous said...

I have been a professor at the University of Pennsylvania and for 33 years during which I have run an environmental chemistry laboratory for the purposes of my research. Nearly all of the debate and expense associated with the Floyd Landis case could have been avoided, and a correct answer determined in a few days by sending subsamples of Floyd's urine to three or four other labs to see what values they measured. Perceived analytical problems are usually addressed in this fashion. The fact that a lab may be "certified" means little, other than they can be used for work with legal importance. Obviously the technicians at the lab that produced the results were incompetent or dishonest or both. Still, the results could be accurate. Legitimate values can always be reproduced at other labs, and this is the only validation that is needed. However much money was spent on this miscarriage of common sense was completely wasted.

Anonymous said...

Dear Editor,

I just read your September, 2007 commentary the day after Floyd's appeal was denied. I am shocked at what appears to be a railroading that is going on with everybody's eyes wide open.

There has to be a driving agenda behind what appears to be mob insanity, and that Floyd was simply the wrong American on the podium in France in 2006.

Ultimately, I am disgusted not by the crime that Floyd might have committed, but rather the lack of resolution these two arbitration panels achieved.

If Floyd was guilty, he should have sucked it up and admitted, then took his punishment. He would not be the first or last. But if he is innocent, which I tend to believe he is, then this TdF victory should have been his crowning achievement. It has been a costly nightmare instead.

Go US Cycling!!! For the first time in 26 years I will not be watching any of the Tour de France!!!!

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